The insistence that the Supreme Court is not a political body is a principle of high folly in American politics. Just last fall, Chief Justice John Roberts lamented the perception that the Court was politicized, saying, “When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the Court function, and the results in our cases do not suggest otherwise.” In reality, appointments to the nation’s highest court reflect the current balance or imbalance of political power, making it impossible to neatly untie them from the political bodies that determine who sits on the Court and who does not. Anyone who doubts this need look no further than the partisan rage displayed by Justice Brett Kavanaugh during his Senate confirmation hearing, in late 2018. From blaming an inquiry into his personal history on “revenge on behalf of the Clintons” to proclaiming “What goes around, comes around” to Senate Democrats, the future Justice arrogantly flexed raw Republican power.
Moreover, as the branch of government that is least accountable to the American public, the Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights. Indeed, at the most significant moments in African-American history, the Court reflected the most reactionary elements of the culture in its efforts to abridge, degrade, or simply eliminate the rights of African-Americans. In 1857, it famously ruled, in Dred Scott v. Sandford, that African-Americans were not and could not be citizens of the United States; Chief Justice Roger Taney concluded that African-Americans were “so far inferior, that they had no rights which the white man was bound to respect.” It took a civil war and its revolutionary upending of American society to reverse the Supreme Court’s damaging ruling, leading to the passage of the Civil Rights Act of 1866, which guaranteed to all, including the formerly enslaved, the same rights that are “enjoyed by white citizens.” The Fourteenth Amendment, guaranteeing birthright citizenship to all and creating the legal principle of equal protection before the law, was built on the foundation of the Civil Rights Act of 1866. In combination with the Thirteenth Amendment, which abolished slavery, and the Fifteenth Amendment, which prohibited racial discrimination as an obstacle to voting, these acts of Congress were intended to elevate African-Americans into the role of citizens, equal before the law and empowered by the ballot to shape the world in which they lived.